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October 31, 2006

Five propositions on the election

By Walter Olson

I wouldn't mind being proven wrong on any of these, but here are five tentative propositions on next Tuesday's vote:

1) Voters intend to punish Republicans for reasons that have little to do with litigation reform. I haven't run across any reports of campaigns in which a Democratic challenger has tried to make an issue of a GOP incumbent's support of the Class Action Fairness Act or med-mal reform, for example.

2) On the other hand, with a few exceptions as in the Pennsylvania Senate race, Republicans don't seem to be promoting national litigation reform as a campaign issue the way they did in previous cycles. One reason may be that it's hard to blame Democratic obstructionism when Congress and the White House have been in Republican hands so long, the GOP Senate having of course served as the longtime boneyard of federal legal reform proposals.

3) None of which makes the issue anything less than crucial as an underlying factor, sometimes behind the scenes and sometimes not, in races from coast to coast. It is lost on no one that Eliot Spitzer pulled off his meteoric rise by using the law to confront businesses. One cannot grasp the peculiar twists and turns in the Texas gubernatorial race except as reflecting the desire of prominent trial lawyers there to punish pro-reform incumbent Rick Perry by whatever means comes to hand. The issue remains hugely salient in statehouse politics from Tallahassee to Madison to Oklahoma City to Sacramento.

4) Even leaving aside the Spitzer example, we continue to live in the golden age of the activist state attorney general. Rhode Island's Sheldon Whitehouse, much criticized on this site for his lawsuits against former lead paint manufacturers, appears on his way to knocking off incumbent U.S. Senator Lincoln Chafee. Minnesota's Mike Hatch holds a narrow lead in his challenge to GOP incumbent Gov. Tim Pawlenty; Hatch's bad ideas have included suing companies that make cold medicines because meth abusers buy the stuff and cook it into their preferred drug. And Patricia Madrid of New Mexico, who has mounted a strong challenge to incumbent House member Heather Wilson -- among other races we'll discuss this week.

5) Of all the trends afoot, quite possibly the most significant as a setback for legal-reform prospects is one covered in today's NYT: Democrats are set to recapture control of many state legislatures from Republicans.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.